The Gazette 1984

JULY/AUGIJST 19S4

GAZETTE

Schools' Liability for Negligence Part 1

by William Binchy, B.A., B.C.L., LL.M., B.L. Research Counsellor, The Law Reform Commission

T HE question of liability of schools in negligence has given rise to much litigation 1 . It is scarcely surprising that from time to time accidents happen in schools. Where children are concerned it is not the case that there is safety in numbers. Wherever children congregate there is the risk that they may be tempted to do many things — to climb a wall, throw a stone, slide down the bannisters— that they would be far less likely to do on their own. School managers know this well. They are faced with the unenviable task of ensuring, as best they may, that children attending school are not injured from lack of supervision or from other sources of danger that may arise during the school day. When children who are injured at school sue the school authorities, the courts are presented with some difficulties in applying the negligence standard. Too low a standard would clearly leave students open to unwarranted dangers; on the other hand to set the standard of care at a very high level might not be in the interests of school children in the long run. As a Canadian Judge has counselled: "It must . . . . be required that one of the most important aims of education is to develop a sense of responsibility on the part of pupils, personal responsibility for their individual actions, and a realisation of the personal consequences of such actions." 2 A very general guiding principle was expressed by Lord Esher in Williams -v- Eady i that: "the schoolmaster [is] bound to take such care of his boys as a careful father would take of his boys " Although this statement has been quoted widely with approval in several decisions in this country 4 and abroad 5 , it has been criticised for being "unrealistic, if not unhelpful", 6 especially where the number of pupils is high. The problems of care and control in a school bear some resemblance to those confronting a parent in the home but they are far from identical. It is possible that in a future decision an Irish court will drop the reference to the "careful father" (or "careful parent") and stress the fact that it is the standard of the reasonable school teacher or manager which should prevail. In this article we will consider the liability of schools under six headings: (1) Negligence in instruction;

(1) Negligence in Instruction An allegation of negligence may arise where accidents take place during the course of instruction by teachers. Most of the cases have been concerned with injuries suffered during gymnastic and sports training, where the allegations centre a r ound dangerous exercises, inadequate equipment and lack of supervision. As one judge recently pointed out: "The potential for danger in these cases can be easily imagined. Young students are apt to try different and more daring manoeuvres than a more mature person would permit." 7 In the Supreme Court decision of Mulligan -v- Dohertf in 1966, the plaintiff was a seventeen-year-old girl who was injured when preparing a new gymnastic exercise. The exercise had been demonstrated by the physical training teacher, who had also supervised one girl in repeating the exercise. The teacher then went to another part of the gymnasium to instruct another class. In her absence other girls in the class repeated the exercise without mishap but the plaintiff toppled from the bars and injured her back. The gymnastic exercise involved a somewhat elaborate descent down wall bars, with the hands changing bars alternately in descending order. The plaintiff did not exactly remember what the teacher had done in the demonstration and released both hands simultaneously, resulting in her fall. The plaintiffs case in negligence was based on allegations that there had been inadequate instruction and that the teacher had failed to remain with the class until each of the pupils knew the correct sequence of movements for the safe performance of the exercise. Henchy J. directed the jury to hold that the defendants were not liable and the Supreme Court affirmed. The Supreme Court regarded the exercise as a "routine" one which a seventeen-year-old girl of ordinary intelligence "could not have failed to apprehend . . . ." 10 Chief Justice O Dálaigh considered that no one could reasonably have foreseen that such a girl would fail to understand the safe way of carrying out the exercise, and would substitute her own patently risky mode of descent so as to require that the teacher remain at hand to supervise further: "Something might be said for such a view in the case of young children; but a woman over 17 years of age is a person whose conduct in performing a simple gymnastic exercise might reasonably be expected to be intelligent and sensible . . . . "" In the High Court jury case of Smith -v- Jolly et al. 12 in May 1984, a 14-year-old school girl sustained serious injury when struck by a 4 kilo shot during a school sports 153

(2) Supervision in school playgrounds; (3) Injuries sustained off the premises;

(4) Supervision outside hours; (5) Other acts of negligence; (6) Structural dangers.